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Burnes v. Allen.

fendant executed a deed with a covenant of general warranty. Upon a survey, afterwards made, it was found that twenty-two and a half acres of the land were covered by the plaintiff's title, and sixteen acres by the title of one Parker. All the promises are barred by the statute of limitations, except that proven by the testimony of one Turner. He swore, that in March 1843, he heard a con. versation between the plaintiff and defendant, in relation to the land, when the defendant said: "he did not wish to be sued, he was willing to do what was right, and would be up, on a certain day, to see the plaintiff and settle with him.”

His Honor charged, "that the plaintiff had a cause of action upon the covenant, and, if the jury believed from the testimony of Turner, that the defendant promised to pay the plaintiff for the land, as to which the title was defective, because of forbearance to sue until a given day, the plaintiff was entitled to recover in this action, and was not obliged to sue on the covenant."

A verdict was rendered for the plaintiff and from the judgment thereon the defendant appealed.

Winston, for the plaintiff.

Strange and Iredell, for the defendant.

PEARSON, J. We think his Honor erred. Admit there was a cause of action upon the covenant; admit also, that to "settle with him" meant to pay the value of the land, as to which the title was defective, (about both of which propositions we have serious doubts ;) this was a promise to do precisely what the covenant bound him to do. A promise, made after a covenant, is merged, upon the same ground, that a promise, made before, is merged, when the promise and the covenant are precisely the same; because the covenant, being a deed, is the surest and highest evidence.

Burnes v. Allen.

An obligor promises the obligee to pay the amount of a bond, if the obligee will forbear to sue. No action lies upon the promise, because it is merged in the bond, being a promise to do precisely the same thing, which his bond obliges him to do.

In Wilson v. Murphy, 3 Dev. 352, there was a covenant in the lease, that the lessor would pay for all the neces sary rails made and put on the fence, at the price of fifty cents per hundred. The parties had a settlement, ascertained the number of rails, and the amount due for them, at fifty cents per hundred, and the defendant (the lessor) promised to pay the amount. In an action on the promise, it was decided against the plaintiff, because the action ought to have been on the covenant; and the opinion states, that no case can be found, in which, the performance of a duty being secured by deed, and the deed remaining in full force, an action was maintained upon a promise to perform the duty; for. precisely the same evidence will support both actions, and for the certainty of the contract, the specialty ought to be taken rather than the verbal agreement. No action will lie on a promise merged in the existing deed, for the same reason, that it will not lie on a promise merged in a deed or judgment subsequently taken for the same debt.

It is true, in this case, there was a new consideration, the forbearance; but there was already a sufficient consideration, and the new consideration was merely sur plusage, unless the promise was to do a thing, not already provided for by the covenant-as if the amount of damage had been fixed at a certain sum, to be paid at a certain time; in which case the promise would have been to do a thing not precisely provided for by the deed. In the case of Wilson v. Murphy, if the covenant had been to pay for the necessary rails, no price being fixed, and the parties had agreed upon the number and price, an action would have been maintainable upon the promise, for the

Snowden v. Banks.

promise fixed the price, which was not provided for by the covenant.

In this case, the promise is to do "what is right and to settle." Nothing is fixed. All is left precisely, as provided for by the general words of the covenant.

PER CURIAM.

A venire de novo awarded.

WILLIM SNOWDEN & WIFE vs. WILLIAM F. BANKS, EX'OR.

A. bequeathed a negro woman to his daughter, and afterwards sold her, and kept the amount received from the sale, as alleged by the petition, to be given to the daughter, in lieu of the negro sold; but he made no alteration in his will. Held, on demurrer to the petition, that the daughter had no right to the price of the negro.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1849, his Honor Judge MANLY presiding.

This was a petition filed originally in the County Court and carried by appeal to the Superior Court, in which the facts were alleged as follows.

Richard Wadkins bequeathed to his daughter, Mrs. Snowden, a negro woman, named Ary; and then, in his life time, he sold her for the sum of $325. This is a suit brought by the daughter against the executor for the $325; and the petition states, that the testator sold the negro "for some good and sufficient cause, and not for the purpose of defeating the interest of the plaintiff in the same, and that he kept the said sum of $325 in his possession

Snowden v. Banks.

and did not dispose thereof, but intended it should be given to the plaintiff under his will, in the place of the woman Ary." Upon demurrer, the petition was dismissed, and the plaintiff appealed.

No counsel for the plaintiffs.
Heath, for the defendant.

RUFFIN, C. J. The gift is specific of a particular negro by name. Of course, if the testator had no such negro, the gift would necessarily fail. It is equally well settled, that, if he had the thing at the making of the will, and it be afterwards destroyed, or disposed of by the testator, the legacy likewise fails by what is called an ademption. There is in neither case any thing to answer the descrip. tion in the will; and therefore the will passes nothing. It is said, indeed, that this testator kept the identical money got for the negro, and intended the daughter to have that, instead of the negro. That is very probable; but, if it were true, the testator never put that intention into the will, so as to become a part of it, and enable the plaintiff to make this claim under a testamentary disposition as she must do in this suit. It is impossible, that, under the gift of a specific negro, a sum of money can pass; and therefore no intention to that effect can be averred against the express words of the will.

PER CURIAM.

Decree affirmed with costs.

THE STATE vs. WILLIAM W. MGCAULESS AND AUGUSTUS MARTIN.

The gist of the offence of forcible trespass is a high handed invasion of the possession of another, he being present-title is not drawn in question.

If two are in the same house, the law adjudges the possession in him, who has title; but not so, as, by relation back, to make the other guilty of a forcible trespass, when the entry was without force.

Where there are two counts in an indictment, one good and the other defec

tive, and there is a general verdict against the defendants, the judgment will be presumed to have been given upon the good count alone. But when both counts are good and the Court gives erroneous instructions to the jury as to one of the counts, it is presumed that the judgment was given upon both counts, and a venire de novo will be awarded.

Appeal from the Superior Court of Law of Surry County, at the Spring Term 1849, his Honor Judge ELLIS presiding.

The indictment contains two counts: one, for a forcible trespass into the house of the prosecutor; the other for an assault and battery.

In March 1847, the prosecutor let the house and field to one Mitchell to make a crop. Mitchell transferred his interest in the premises to Mrs. Mitchell, his mother, who took possession and lived in the house until November 1847, when she let the premises to the defendant McCauless, for the balance of the year.

The prosecutor, on the night before the alleged trespass, went to the house, while Mrs. Mitchell was still living in it, and entered, but without force, and slept there on a bed, which he carried there for the purpose. In the morning, being the 1st day of November, he went off, announcing his intention to go and get other household property and bring it to the house. While he was gone, the

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